## Facts

- During the armed conflict in Bosnia and Herzegovina, Bosnian Serb forces carried out a campaign in and around Foča (April 1992–at least February 1993) aimed at expelling Bosnian Muslim civilians through terror.
- Bosnian Muslim women and girls were rounded up, detained in multiple locations (including public facilities and private apartments), and repeatedly subjected to rape and other sexual violence.
- Detention practices included removing girls from a detention site near a municipal police building for repeated rapes at other locations.
- Local authorities and police tolerated the abuses and, in some instances, assisted in guarding victims and participating in mistreatment.
- Dragoljub Kunarac (a commander of a special unit), Radomir Kovač (a paramilitary member), and Zoran Vuković (a soldier) were each linked to specific incidents of rape, sexual abuse, and captivity-based exploitation of detainees.
- Evidence included survivor testimony and corroborating contextual evidence establishing a pattern of coercive detention, sexual violence, and control over victims.

## Issues

1. Whether the charged rapes, sexual enslavement, and related abuses occurred as part of a widespread or systematic attack directed against a civilian population, satisfying the contextual elements of crimes against humanity.
2. Whether rape and other sexual violence can constitute torture under the tribunal’s statute and customary international law.
3. Whether the conduct toward detained women and girls satisfied the elements of enslavement as a crime against humanity, including “ownership-like” powers without formal legal ownership.
4. How rape should be defined in international criminal law for purposes of crimes against humanity and war crimes, particularly regarding coercion and consent.

## Decision

- The Trial Chamber found that the Foča abuses formed part of a widespread or systematic attack against Bosnian Muslim civilians, satisfying the contextual requirements for crimes against humanity.
- The Chamber convicted:
  - Kunarac of crimes against humanity (rape, torture, enslavement) and war crimes (rape, torture), sentencing him to 28 years’ imprisonment.
  - Kovač of crimes against humanity (rape, enslavement) and war crimes (rape, outrages upon personal dignity), sentencing him to 20 years’ imprisonment.
  - Vuković of crimes against humanity (rape, torture) and war crimes (rape, torture), sentencing him to 12 years’ imprisonment.
- The Appeals Chamber later dismissed challenges to the convictions and maintained the sentences.

## Legal Principles

- Crimes against humanity require a widespread or systematic attack directed against a civilian population; individual acts (including sexual violence) qualify when committed as part of that attack.
- Rape in international criminal law may be established as a non-consensual “physical invasion of a sexual nature” committed in coercive circumstances; coercive detention and armed-conflict conditions may negate meaningful consent.
- Sexual violence can constitute torture when it intentionally inflicts severe physical or mental pain or suffering for prohibited purposes such as intimidation, punishment, or discrimination.
- Enslavement as a crime against humanity may be proven by the exercise of powers attaching to ownership (e.g., control of movement, captivity, forced services, and sexual exploitation), even absent formal legal title.
- Individual criminal responsibility attaches where evidence links an accused to specific criminal acts and participation in the coercive system enabling the abuses.

## Conclusion

The tribunal held that systematic detention, repeated rapes, and coercive sexual exploitation of Bosnian Muslim women and girls in Foča constituted war crimes and crimes against humanity, and it affirmed that rape may amount to torture and that captivity-based sexual exploitation may constitute enslavement through ownership-like control.


Prosecutor v. Kunarac (Foča), Case Nos. IT-96-23-T & IT-96-23/1-T (Int’l Crim. Trib. for the Former Yugoslavia Trial Chamber Feb. 22, 2001)